The Mad Doctor

This suggestion of leaving regulation to local authorities makes no sense at all when it comes to the drug trade, which usually involves international (or, at the very least, interstate) commerce. Moreover, his suggestion that the need to “protect liberty across the board” amounts to a “First Amendment type issue” means that the states would have no more right to outlaw bongs and brothels than the federal government. The Supreme Court has federalized Bill of Rights protections since 1925 (Gitlow v. New York), meaning that First Amendment protections restrict state power (under the 14th Amendment’s guarantee of “equal protection”) just as much as they limit the Washington bureaucracy. If the feds can’t interfere with selling smack or sex (under some bizarre misinterpretation of a Constitutional right to free expression) then states can’t touch those activities either.

Reasonable people might disagree on the advisability of restrictive drug laws and the criminalization of prostitution; many thoughtful conservatives believe that society would benefit by decriminalizing recreational drugs (especially marijuana) and authorizing the sex trade under medically regulated circumstances. But the suggestion that such reforms amount to a sound shift in social policy isn’t the same as Dr. Paul’s provocative (and preposterous) claim that the First Amendment and “protection of liberty across the board” forbid limitations on even the most dangerous drugs.

The only possible argument for this Constitutional interpretation would involve a sweeping expansion of the fictitious “right to privacy” – a whole-cloth invention of the Warren Court that conservatives (and originalists) generally hate. If the Constitution actually hints at a right to privacy so comprehensive that it protects a previously unrecognized right to sell sex, then how can it not guarantee the freedom to terminate your pregnancy? But Dr. Paul insists he remains fervently pro-life and speaks with (appropriate) contempt of Roe vs. Wade.

But did the Founders ever intend to guard “personal habits” from governmental regulation? If so, then why did prior generations fail to employ Dr. Paul’s Constitutional argument to challenge the long-history of strict local, state and federal supervision of the sale and distribution of alcoholic beverages?

Enjoyment of booze (yes, I just poured myself a delicious Barleywine Ale from Full Sail brewery) represents perhaps the most commonly practiced “personal habit” in American culture, but that hasn’t stopped authorities from limiting the hours of bar service or, in numerous “dry” counties or states, prohibiting the marketing of liquor altogether, both before and after our ill-fated experiment with Prohibition.

When it comes to alcohol, for instance, there’s a world of difference between enjoying ale in your dining room, and operating a bar or liquor store. Even those who maintain that purely private activities (like sex between consenting adults) deserve Constitutional protection, can recognize that selling sex or drugs on street corners is hardly private, nor is setting up bordellos or pubs to lure customers.

Commercial transactions are by their very nature public, with an inevitable impact on the larger community. That’s why rules against growing and using weed in your own home seem far more intrusive and unreasonable than laws against mass marketing of marijuana.

In fact, the primary purpose of the Constitution involved governmental organization of commerce. When our founding document initially enumerates the powers of the Federal Congress (Article 1, Section 8) it begins with eight specific provisions for the government’s facilitation and, yes, supervision of economic activity and the creation of wealth, such as “coining money,” “regulating commerce with foreign nations,” providing “uniform laws on the subject of bankruptcies,” “collecting taxes” “promoting the progress of science and the useful arts” and so forth. The libertarian instinct to condemn as unconstitutional any governmental role in the economy ignores the core concerns that brought the merchants, planters and lawyers together for their fateful convention in 1787: they wanted above all to institute a stronger federal government to promote prosperity, and to reduce the confusion and chaos of thirteen separate state economies governed almost entirely by separate rules.

In this context, one could argue that a “need to protect liberty across the board” should include a near absolute ability to do what you please in your own home, but it wouldn’t involve untrammeled freedom to make money in any way you choose. Building wealth inevitably involves others, and significant, impactful social interaction. Would anyone claim that protecting liberty guaranteed a right to advertise some phony, falsely packaged “miracle cure” for cancer that did significant harm to those who purchased it, or for a public market to offer dead cats labeled as ground sirloin?

Congressman Paul’s refusal to acknowledge any role for government in restricting drugs or prostitution, and his insistence that these “personal habits” deserve the same protection as prayer or worship, represent a sad caricature of conservative and libertarian ideology.

The good doctor added to the reckless pattern when announcing his candidacy on ABC’s “Good Morning America” by claiming that the successful raid against bin Laden represented the beginning of a planned “massive invasion” of Pakistan by the U.S. military. The Pakistani press will no doubt focus on his remarks, arousing an already alarmed public with reports that a “high American official” predicted the imminent occupation of their country.

Pakistanis don’t understand that Ron Paul isn’t a serious political figure, but most Americans do. Last time he ran for president, he raised and spent more than $28 million dollars, but won far less than 1% of convention delegates (21 of 2830). This time he’ll fare even worse since his campaign rhetoric already seems to make less sense.

Dr. Paul will be 76 by the time of the election next year (even older than such superannuated past contenders as Bob Dole and John McCain when they ran) so the good news is that 2012 will likely represent Dr. Demento’s Last Hurrah or, more precisely, his Last Harrumph.

Michael Medved's daily syndicated radio talk show reaches one of the largest national audiences every weekday between 3 and 6 PM, Eastern Time. Michael Medved is the author of eleven books, including the bestsellers What Really Happened to the Class of '65?, Hollywood vs. America, Right Turns, The Ten Big Lies About America and 5 Big Lies About American Business

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